Opinion
No. 3:05cv0797 AS.
March 12, 2007
APPELLANT PRO SE: MARVIN TAYLOR, Michigan City, Indiana.
ATTORNEYS FOR APPELLEE: STEVE CARTER, Attorney General of Indiana, ELLEN H. MEILANDER, Deputy Attorney General, Indianapolis, Indiana.
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Amy Barnes, Judge Cause No. 49G02-9807-CF-107714
MEMORANDUM, OPINION AND ORDER
On or about December 20, 2005, pro se petitioner, Marvin Taylor, an inmate at the Indiana State Prison (ISP), Michigan City, Indiana, filed a petition seeking relief under 28 U.S.C. § 2254. The Response and Brief filed on behalf of the respondent by the Attorney General of Indiana on July 5, 2006, demonstrates the necessary compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). Taking full judicial notice of the record in this case, the reasons for the delay in the filing of the Traverse are readily apparent, and such Traverse was filed on February 1, 2007. However, there is yet to be compliance with this court's order of December 7, 2006 with regard to the filing of the complete state record.
Although the record is not perfect, it appears to be adequate enough to deal with the petition filed pro se by Marvin Taylor alleging a possible basis for relief under 28 U.S.C. § 2254. Involved here are sentences exceeding 59 years in two charges of child molestation in Indianapolis and Marion County, Indiana in 1999. The Court of Appeals of Indiana published opinions affirming the aforesaid convictions in Taylor v. State, 735 N.E. 2d 308 (Ind.App. 2000). The limited remand there does appear to benefit this petitioner here. This petitioner is entitled to any benefits under Houston v. Lack, 487 U.S. 266 (1988). This action by the Court of Appeals of Indiana is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1), and this petitioner has the burden of rebutting that presumption by clear and convincing evidence which he has failed to do.
This court has given close attention to the petitioner's pro se filing on February 1, 2007. That filing is in excellent legal form and deserves and has been given careful and hopefully thoughtful consideration.
At the outset, two cases decided by the Supreme Court of the United States on the same day are at least a good beginning point for the consideration of this case. See Woodford v. Visciotti, 537 U.S. 19 (2002) and Early v. Packer, 537 U.S. 3 (2002). See also Rice v. Collins, 125 S.Ct. 969 (2006), Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1831 (2002), and Charlton v. Davis, 439 F.3d 369 (7th Cir. 2006). Frankly, notwithstanding the excellent presentation by Mr. Taylor, this court remains unconvinced that he has made a case for ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668, rehr'g denied, 467 U.S. 1267 (1984). See also the standards enunciated in Williams v. Taylor, 529 U.S. 362 (2000), as well as in Bell, supra. The opinion of the late Chief Justice in Bell, supra in which he speaks for all the court except Justice Stevens is worthy of close attention, respect and its applicability here. In this regard, he stated:
We cautioned in Strickland that a court must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. 466 U.S., at 689, 104 S.Ct. 2052. Given the choices available to respondent's counsel and the reasons we have identified, we cannot say that the state court's application of Strickland's attorney-performance standard was objectively unreasonable. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is difficult for this court to gainsay the reasoning and result of the Court of Appeals of Indiana with regard to the issue of ineffective assistance of counsel and indeed with regard to the issue of the statute of the State of Indiana being constitutional. Recently, in a nine-page unpublished order, a panel of the Court of Appeals dealing with a case under 28 U.S.C. § 2254 dealt extensively with the issue of ineffective assistance of counsel on February 8, 2007 in Pinkins v. Buss, No. 05-4528 (7th Cir. 2007). Even if Pinkins is not a binding precedent, it is certainly worthy of attention for the way in which the issue of ineffective assistance of counsel is approached. Much that is ably presented as argument by Mr. Taylor is simply not supported by the record. This court does not conceive that Kimmelman v. Morrison, 477 U.S. 365 (1986) has direct applicability to this case.
Much that is argued here turns to some extent onto credibility of witnesses, which under Article III of the Constitution of the United States and the Sixth Amendment of that Constitution is consigned in the first instance to the jury. This court knows well that tensions are often created in high-profile cases, and indeed other cases between defense counsel and a defendant, and many of those tensions are spewed forth in later proceedings under 28 U.S.C. § 2254. The Sixth Amendment of the Constitution and cases such as Strickland and United States v. Cronic, 466 U.S. 648 (1984), as well as Evitts v. Lucey, 469 U.S. 387 (1985), do not require defense counsel and a defendant to like one another. The Constitution of the United States, as reflected in a series of decisions by the Supreme Court of the United States, has imposed certain constitutional obligations on defense counsel.
It is interesting that this petitioner has found Von Moltke v. Gillies, 332 U.S. 708 (1948) which has historical importance for some unique circumstances that existed just after World War II. This court has taken the trouble to re-read the opinions of Justices Black, Frankfurter, and Burton in Von Moltke and, with all deference, the factual circumstances presented in that case are significantly dissimilar to the one presented here.
This court has given close attention to the two published opinions cited by the petitioner here, namely, In Re Geller, 777 N.E. 2d 1099 (Ind. 2002), and In the Matter of Steven B. Geller, 779 N.E. 2d (Ind. 2002). The actual dates of these two proceedings and opinions were November 4, 2002 and December 9, 2002.
After examining these opinions of the Supreme Court of Indiana regarding Steven B. Geller, this court also gave close attention to an unpublished opinion entered on September 19, 2005 by Chief Judge Kirsch of the Court of Appeals of Indiana and concurred in by Judges May and Robb. For the immediate reference of all concerned, the memorandum decision is marked as Appendix "A," attached hereto and incorporated herein. In In Re Geller, the following statement appears: "In retaliation for a client's threat to file a disciplinary grievance, the respondent threatened to reveal the former client's conviction for child molesting to the client's fellow inmates in prison." That conduct does not appear to relate to this case. It is worthy of some note that this petitioner was acquitted on one count of Class A felony child molesting and one count of Class C felony of child molesting. On direct appeal, yet another Class A felony for child molesting was reversed.
According to Chief Judge Kirsch, the petitioner has argued three reasons for the ineffectiveness of counsel. They are failure to file a motion to dismiss; failure to zealously advocate Taylor's case, and failure to investigate the circumstances of the victims' statements. As indicated by Chief Judge Kirsch, the first two arguments are directed solely at Attorney Geller and the third was directed to both Geller and subsequent attorneys for this petitioner.
The Court of Appeals of Indiana at the hands of their chief judge cited and analyzed the circumstances presented under Strickland and laid out the obligations of the petitioner as follows:
First, the petitioner must demonstrate that counsel's performance was deficient, which requires a showing that counsel's representation fell below an objective standard of reasonableness and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Timberlake v. State, 753 N.E. 2d 591, 603 (Ind. 2001). Second, the petitioner must demonstrate that he was prejudiced by the counsel's deficient performance. Id. To show prejudice, a petitioner must show that there is a reasonable probability that the outcome of the trial would have been different if counsel had not made the errors. Id. A probability is reasonable if it undermines confidence in the outcome. Id.
This court is not prepared here to gainsay the decision on the subject of ineffectiveness of counsel decided by the Court of Appeals of Indiana. It is to be noted that on September 19, 2005, the two published opinions of the Supreme Court with regard to the discipline of Mr. Geller were a matter of public record. As far as this court can tell, any motion to dismiss challenging the constitutionality of the Indiana statute in question was without merit, and was not surprisingly denied. Although there is mention of the Fourteenth Amendment of the Constitution of the United States, the argument in question focused primarily on Article I Section 23 of the Constitution of Indiana.
The discussion of Attorney Geller's conduct on page 10 of the aforesaid unpublished opinion by Chief Judge Kirsch is subject to very considerable respect here. The same can be said of the analysis of failure to investigate victim statements and the discussion of appellate counsel who, according to the record, was not Mr. Geller. Obviously these kinds of charges are serious, and need to be treated seriously. It is equally obvious that the chief judge of the Court of Appeals of Indiana is much closer to this situation than this court. It is a little hard to conceive that court and its chief judge would not take a close look at the assertions of ineffective assistance of counsel that were made here. The record appears that it and that court did, and the Supreme Court of Indiana denied transfer on November 16, 2005.
At the end of the day, this petitioner has failed to advance a convincing case for relief under 28 U.S.C. § 2254, and such is now DENIED. IT IS SO ORDERED.
MEMORANDUM DECISION — NOT FOR PUBLICATION
Marvin Taylor appeals the denial of his petition for post-conviction relief from his convictions on one count of child molesting as a Class A felony, one count of child molesting as a Class B felony, one count of attempted child molesting as a Class B felony, two counts of child molesting as Class C felonies, and one count of dissemination of matter harmful to a minor, a Class D felony. He raises the following three issues on appeal:
I. Whether Indiana's child molesting statute is unconstitutional;
II. Whether Taylor received the effective assistance of trial counsel; and
III. Whether Taylor received the effective assistance of appellate counsel. We affirm.
FACTS AND PROCEDURAL HISTORY
The facts supporting Taylor's convictions as set forth by this Court on his direct appeal are as follows:
Over the course of several years, Taylor committed various acts of child molesting upon an extended family of young cousins. When siblings Ki. and Ke. were in his care, he fondled Ki. (female, age 3 or 4) and engaged in sexual deviate conduct with Ke. (male, age 5). When their cousin A. was 6 or 7 years of age, Taylor attempted intercourse and engaged in deviate sexual conduct with her and also fondled her. When A. was about 8, Taylor also exposed himself to her. Further, Taylor was charged with having committed the crime of deviate sexual conduct with another cousin, T., when she was age 6 or younger.Taylor v. State, 735 N.E.2d 308, 309-10 (Ind.Ct.App. 2000).
Taylor was initially represented at the trial level by Steven Geller, who served as his attorney during the child hearsay hearing where the trial court found that the victims' videotaped statements could be admitted into evidence. Appellant's App. at 94-96. Geller cross-examined all of the witnesses at the hearing. Subsequently, Geller withdrew as Taylor's counsel and Luanne Morrissey and Lindsay Schneider took over Taylor's representation. Schneider thought that there were a few follow-up questions that he wanted to ask, and he felt that to be effective, he needed to have an opportunity to observe the victims and interact with them to assess their credibility. Tr. at 6-8, 15-16. Schneider and Morrissey filed a motion for a new child hearsay hearing, but the trial court denied this motion. Appellant's App. at 97. After the motion for a new child hearsay hearing was denied, Morrissey and Schneider filed notice of depositions of the child victims and their mothers. Appellant's App. at 97. The State filed a motion to quash in response, which the trial court denied. Id. During Taylor's trial his counsel cross-examined the witnesses, objected to evidence, presented witnesses, tendered jury instructions, and made a closing argument presenting the consistent defense theory that the children were not telling the truth. Id. at 97-98.
At the conclusion of the trial, Taylor was acquitted of one count of Class A felony child molesting and one count of Class C felony child molesting. Id. at 98. He was convicted on all of the remaining counts and sentenced to a total of 89 ½ years. Id. at 98-99. On direct appeal, one of Taylor's Class A felony child molesting convictions was reversed, and he was subsequently acquitted of that count following a retrial. Id. His sentence was accordingly adjusted to 59 ½ years. Id.
Taylor filed a petition for post-conviction relief in which he claimed that he received ineffective assistance of trial and appellate counsel and that Indiana's child molesting statute is unconstitutional for various reasons. Id. at 70-92, 99-100. At the post-conviction hearing, Taylor withdrew his allegation of ineffective assistance of appellate counsel. Tr. at 18. After the evidentiary hearing, the post-conviction court entered its specific findings of fact and conclusions of law denying relief. Appellant's App. at 93-106. Taylor now appeals.
DISCUSSION AND DECISION
Post-conviction proceedings do not afford the petitioner an opportunity for a super appeal, but rather, they provide the opportunity to raise issues that were unknown or unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). The proceedings do not substitute for a direct appeal and provide only a narrow remedy for subsequent collateral challenges to convictions. Id. The petitioner for post-conviction relief bears the burden of proving the grounds by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
When a petitioner appeals a denial of post-conviction relief, he appeals a negative judgment. McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). The petitioner must establish that the evidence as a whole unmistakably and unerringly leads to a conclusion contrary to that of the post-conviction court. Id. We accept the post-conviction court's findings of fact unless they are clearly erroneous. Bigler v. State, 732 N.E.2d 191, 194 (Ind.Ct.App. 2000). We only consider the probative evidence and the reasonable inferences therefrom that support the post-conviction's determination and we will not reweigh the evidence or judge the credibility of the witnesses. Id.
I. Constitutionality of Child Molesting Statute
Taylor argues that Indiana's child molesting statute is unconstitutional for various reasons. These arguments were not raised at either the original trial or on direct appeal. Post-conviction proceedings give petitioners the opportunity to raise claims that were not known at the time of the original trial or were not available on direct appeal. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). Claims available on direct appeal but not presented are not available for review at the post-conviction proceedings. Id. Because all of Taylor's claims regarding the constitutionality of the child molesting statute were known and available on direct appeal but were not raised, they are waived. In addition, Taylor may not present a claim of fundamental error as a freestanding claim. "A claim characterized solely as fundamental error is available only on appeal and is raised when there has been a failure to assign an error which is so egregious that it must be decided by the appellate court because of its fundamental nature." Bailey v. State, 472 N.E.2d 1260, 1263 (Ind. 1985). Therefore, in post-conviction proceedings, fundamental error may not be raised as a freestanding claim; instead, the issues that arguably constitute fundamental error may only be raised through an allegation of ineffective assistance of counsel or if not available earlier. Id.II. Ineffective Assistance of Trial Counsel
Taylor argues that his trial counsel was ineffective for three reasons: (1) failure to file a motion to dismiss; (2) failure to zealously advocate Taylor's case; and (3) failure to investigate the circumstances of the victims' statements. We review ineffective assistance of trial counsel claims under the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must demonstrate that counsel's performance was deficient, which requires a showing that counsel's representation fell below an objective standard of reasonableness and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Second, the petitioner must demonstrate that he was prejudiced by the counsel's deficient performance. Id. To show prejudice, a petitioner must show that there is a reasonable probability that the outcome of the trial would have been different if counsel had not made the errors. Id. A probability is reasonable if it undermines confidence in the outcome. Id.We presume that counsel rendered adequate assistance and give considerable discretion to counsel's choice of strategy and tactics. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). "Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective." Id. The two prongs of this test are separate and independent inquiries, and thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland, 466 U.S. at 697).
A. Failure to File a Motion to Dismiss
Taylor argues that his trial counsel was ineffective because he did not file a motion to dismiss based on the fact that the child molesting statute is unconstitutional. He specifically claims this is because of the lack of intent in the statute. Our Supreme Court has held that the legislature intended to criminalize all sexual intercourse and deviate sexual conduct with children and that intent to arouse sexual desires is not an element of the offense. D'Paffo v. State, 778 N.E.2d 798, 801 (Ind. 2002). The legislature meant to prohibit all such conduct, even when performed as an act of revenge or control rather than an act performed to arouse sexual desires. Id. The statute has long been interpreted that criminal intent is an element of the offense of child molesting. Louallen v. State, 778 N.E.2d 794, 797 (Ind. 2002). This element guarantees that innocent conduct, such as a medical examination or a hygiene-related procedure would not fall under the statute. D'Paffo, 778 N.E.2d at 802. Because of this, any motion to dismiss filed by Taylor's counsel would not have been granted. A defendant must demonstrate that a motion would have been successful to prevail on a claim of ineffective assistance of counsel based on a failure to file a motion on defendant's behalf. Wales v. State, 768 N.E.2d 513, 523 (Ind.Ct.App. 2002). Because Taylor has not shown that his counsel would have prevailed on a motion to dismiss, he is not entitled to relief.
Taylor also claims that the child molesting statute is unconstitutional because it is a status-based offense and criminalizes behavior based solely on the age of the victim. Proper constitutional challenges involve a statute that criminalizes activity based on the perpetrator's status, such as age, race, gender, or nationality. See, e.g., Cowart v. State, 756 N.E.2d 581 (Ind.Ct.App. 2001). Because Taylor has not claimed any classification that is based on his age, race, gender, or nationality, or any other characteristic, his claim that his counsel was ineffective for failing to file a motion to dismiss is without merit.
Additionally, Taylor contends that the statute is unconstitutional because it violates equal privileges. He concedes that the classification created by the statute, children under the age of fourteen, is reasonably related to inherent characteristics which distinguish the class, so the statute meets the first prong of the test from Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). Appellant's Br. at 22. Instead, he claims that the preferential treatment is not uniformly applicable and equally available to all persons similarly situated. See Collins, 644 N.E.2d at 80. Under Indiana's child molesting statute, all children under the age of fourteen are subject to the protection from having someone perform sexual intercourse or deviate sexual conduct with them. As the statute applies equally to all persons under the age of fourteen there is no unconstitutionally disparate treatment among those who fall within the classification. Because all of Taylor's contentions regarding the constitutionality of the child molesting statute are without merit, his trial counsel was not ineffective for failure to file a motion to dismiss.
Taylor states in his brief that his convictions were obtained in violation of the Fourteenth Amendment of the United States Constitution, but his entire argument and analysis is based on Article I, Section 23 of the Indiana Constitution. Appellant's Br. at 21-22. Therefore, we will discuss it as a claim under the Indiana Constitution.
B. Failure to Zealously Advocate
Taylor argues that Geller did not zealously advocate Taylor's case because Geller wrote a threatening letter to him after Geller withdrew from the case. In the letter, which was written over a year after Geller had withdrawn from Taylor's case, Geller stated that Taylor's subsequent counsel felt the same way about him that Geller did. Appellant's App. at 125. At the post-conviction hearing, Schneider, Taylor's subsequent counsel stated that the letter was not true and that the letter had no effect on his representation of Taylor. Tr. at 6. Taylor also contends that Geller did not investigate the facts and circumstances of the case. The evidence shows that while he represented Taylor, Geller participated in the child hearsay hearings and cross-examined all of the witnesses at the hearing. Taylor has not demonstrated that Geller's representation fell below an objective standard of reasonableness or that his performance was deficient. Therefore, he has not shown that his counsel was ineffective for failing to zealously advocate his case.C. Failure to Investigate Victims' Statements
Taylor argues that his counsel was ineffective because none of the attorneys challenged the manner in which the child victims' interviews were conducted. The evidence shows that the attorneys did in fact investigate the statements. Geller cross-examined the victims at the child hearsay hearing. At the conclusion of the hearing, the court found that the child interviewer "clearly did not coach the children" and that she used "open-ended, non-leading, non-suggestive questions while interviewing the children." Appellant's App. at 105. The court also stated that the interviewer "had the children repeat some of their answers for clarification and to demonstrate that they knew the meaning of some of the terms they used." Id. Each child was also interviewed separately and without a parent present. Id. Schneider and Morrissey filed a motion to reopen the child hearsay hearing. Although their motion was denied, they filed notices for depositions of the children and their mothers and succeeded in getting permission to conduct these depositions. Counsel also objected to the admission of the videotaped interviews, cross-examined the children who testified at trial, challenged the victims' credibility, and made a closing argument presenting the consistent defense theory that the children were not telling the truth. Thus, Taylor's trial counsel did investigate the victims' statements and any failure to present the exact argument that Taylor claims in his brief would not have changed the result. Therefore, he was not prejudiced, and he received effective assistance from his counsel.
III. Ineffective Assistance of Appellate Counsel
Taylor also contends that he received ineffective assistance from his appellate counsel. He has waived this argument because he withdrew these claims at his post-conviction hearing. At the hearing, Taylor stated that he did not mean to subpoena his appellate counsel because "he did his part," and "I don't have any problems with the appellate counsel." Tr. at 18. The post-conviction court directly asked Taylor if he was withdrawing his allegation of ineffective assistance of appellate counsel and Taylor responded in the affirmative. Id. Issues not presented to the post-conviction court may not be raised for the first time on appeal and are waived. See Emerson v. State, 812 N.E.2d 1090, 1098-99 (Ind.Ct.App. 2004). Therefore, Taylor has waived his contention of ineffective assistance of appellate counsel.
Affirmed.
MAY, J., and ROBB, J., concur.